Gorsuch on Cyber-Related Issues: Part Two

This is the second part of a three-part series on Judge Neil Gorsuch’s handling of cyber issues. In this collection of cases, Judge Gorsuch identifies the uniqueness of computer searches and the accompanying safeguards, and examines potentially faulty databases.

Computer Searches—Timeliness and Particularity

In United States v. Christie, a horrific story of child neglect and eventual second-degree murder, Judge Gorsuch grappled with the timeliness and particularity of computer searches and their corresponding warrants.

Rebecca Christie’s three-year-old daughter, B.W., died from dehydration under the sole care of Christie while her husband was on an out-of-state deployment with the Air Force. Since the death occurred on an Air Force base, the case was investigated and prosecuted by federal authorities.

An avid World of Warcraft gamer, Christie shut her daughter in a room for 14 hours at a time, effectively locking her in, as B.W. was unable to open the door herself. Despite the striking signs of her daughter’s dehydration, Christie failed to care for B.W. B.W. died within nine days. In the words of Judge Gorsuch, “BW simply died from being ignored.”

Proof of Christie’s neglect was found on a computer, including her constant online activity from noon to 3 AM. Christie also sent messages to fellow gamers indicating that she could “effing party” once her husband was deployed and that, according to the opinion, “she was annoyed by her responsibilities as a mother.”

While Christie did not object to the original seizure of the computer, she did object to the two subsequent searches of it, claiming that the corresponding warrants did not comply with the Fourth Amendment.

As to the first search, Christie argued that since it occurred five months after the seizure, the investigative delay made it constitutionally impermissible. To determine the reasonableness of the delay, Judge Gorsuch balanced the Fourth Amendment interests of the individual against the interests of the government.

Christie’s co-ownership of the computer was crucial to the outcome. Her husband consented to the original seizure, and at no point in the following months did she object. Because of Christie’s inaction, Judge Gorsuch holds that the government was “entitled to assume under long-standing Supreme Court teachings that any Fourth Amendment interest in the computer’s continued possession had been voluntarily relinquished.”

Additionally, the government presented evidence that the delay was due to the unavailability of the law enforcement agent, who had been called out of town to assist with undercover operations. As Christie, who bore the burden of proof, did not establish that the case could have been transferred to an available agent, Judge Gorsuch finds that the government made a colorable case for the delayed search.

In balancing the government’s interest with the “nature and quality of the intrusion on the individual’s Fourth Amendment interest,” the court fails to see any significant harm that would tilt the scale in favor of Christie. However, Judge Gorsuch notes that while the additional duties of a government agent justified the delay in the case at hand, the same would not always be the case.

As to the second search, Christie challenged the warrant on the grounds that it was not sufficiently particular. As outlined in the Fourth Amendment, warrants are required to “particularly describe the place to be searched, and the persons or things to be seized.”

In a telling paragraph, Judge Gorsuch lays out his concerns about computer searches.

Personal computers can and often do hold “much information touching on many different areas of a person’s life.” They can contain (or at least permit access to) our diaries, calendars, files, and correspondence—the very essence of the “papers and effects” the Fourth Amendment was designed to protect. In today’s world, if any place or thing is especially vulnerable to a worrisome exploratory rummaging by the government, it may be our personal computers.

Noting that the particularity of computer searches is new terrain, he identifies two different lines of cases—first, thosethat are invalidated because they have no limiting principle on the material to be seized, and second, thosethatarevalidated because their scope is limited “either to evidence of specific federal crimes or [to] specific types of material.”

In deciding whether the warrant at issue was sufficiently limited, the result turns on the interpretation of the warrant’s introductory clause. The warrant reads as follows:

[a]ll records and information relating to the murder, neglect, and abuse of [BW] from June 19, 2002 (date of birth) to May 4, 2006, (date computer seized), including:
…
3. All records and information, including any diaries or calendars, showing the day-to-day activities of Rebecca Christie and/or [BW].

Christie argued that paragraph 3 stood alone and was not particular enough. On the other hand, the government argued that paragraph 3 was limited by the introductory clause and thus sufficiently narrowed to evidence of specific crimes. Relying on precedent that held introductory language to be sufficiently limiting, Judge Gorsuch finds the government’s argument convincing.

Additionally, Christie made a bold argument that search warrants for computers should be limited not only to what on a computer can be searched but to how it can be searched. While Judge Gorsuch agrees that the “how” is important, he finds the proper place for its examination to be in ex post review rather than an ex ante warrant application.

So even if courts do not specify particular search protocols up front in the warrant application process, they retain the flexibility to assess the reasonableness of the search protocols the government actually employed in its search after the fact, when the case comes to court, and in light of the totality of the circumstances. Unlike an ex ante warrant application process in which the government usually appears alone before generalist judges who are not steeped in the art of computer forensics, this ex post review comes with the benefit, too, of the adversarial process where evidence and experts from both sides can be entertained and examined.

As to this case, Judge Gorsuch finds that Christie provided minimal argument and evidence as to why the government protocols used to search her computer were improper or insufficiently particular.

Writing a year before the Supreme Court held that cellphones were unique under the Fourth Amendment in Riley v. California, Judge Gorsuch eloquently expresses concern about intrusive searches into computers, recognizing that the vast array of information they may contain harkens back to several items the Fourth Amendment sought to secure: papers and effects. He writes confidently in new territory, addressing the question about whether warrants should limit how law enforcement should search rather than leaving the question for another day—perhaps an indication of his capability and desire to handle cyber-related issues.

Garbage In, Garbage Out
In two unrelated cases involving the effects of bad data, Judge Gorsuch grapples with potentially faulty databases. In the first case, the judge declines to consider reliability of the database in question, but he takes up the question of unreliable databases with renewed vigor five years later.

Round One:

In Garcia v. Board of Educ. of Albuquerque Public Schools, the court dealt with a public school’s failure to create an individualized education plan (IEP), a requirement for providing a student with special needs a freed and appropriate education (FAPE). The school failed to create a 2003 fall semester plan tailored to Myisha, one of its students, because the computer system showed that Myisha’s IEP had been updated in August. Rather than reflecting a statute-abiding IEP for the upcoming fall, the August database update was just the logging of a temporary IEP from a juvenile detention center, where Myisha had spent the previous spring semester.

Despite not following a properly updated IEP, the school enrolled Myisha in all special education courses for the fall. In December, the school held an IEP meeting after realizing that there was not one in place for Myisha. On Myisha’s behalf, her mother brought a claim that Myisha was denied a FAPE during the fall semester.

Over the semester in question, Myisha had 65 unexcused absences up until early December, when she was suspended for fighting. While she was allowed to attend her final exams, she failed to do so, resulting in her failing all of her classes. The school district argued that in light of Myisha’s actions, no substantive harm or denial of a FAPE had occurred due to the school district’s failure to create a fall semester plan.

Perhaps because of the school district’s acknowledgment that it had failed to comply with the statute’s procedural requirements, Judge Gorsuch does not address the potential database problems. However, in upholding the district court’s denial of remedies to Myisha, he notes that the decision should not “be taken as excusing the school district’s actions.”

Round Two:

Five years later, Judge Gorsuch had much more to say about potentially faulty or unreliable databases. In United States v. Esquivel-Rios, the court addressed whether an officer had reasonable suspicion for a traffic stop based upon the dispatcher’s statement that the car’s temporary 30-day registration tag was not returning a result from the database and that “Colorado temp tags usually don’t return.” This presented a novel issue—the reliability of databases. Potentially, a “no-return” might not “suggest criminal conduct but only some bureaucratic snafu.”

Referencing 2001: A Space Odyssey, Judge Gorsuch noted that computers and their databases need not be perfect to provide the necessary reasonable suspicion.

Of course, nothing in life is perfect. Neither does anyone expect or even want some sort of maniacally perfect, all-knowing, all-seeing HAL 9000 computer in the government’s hands—a situation that would itself no doubt raise Fourth Amendment questions. Instead, the law expects and takes account of human (and computational) frailties, requiring less, far less, than perfect certainty of a traffic violation before an officer may initiate a brief investigatory stop.

Yet the district court did not engage with the evidence about the unreliability of the database, which Judge Gorsuch found unsatisfactory. The record was “threadbare” as to why Colorado temporary tags do not usually return or how frequently “usually” actually is. In fact, the Tenth Circuit did not even know the name of the database. Running through possible scenarios, Judge Gorsuch demonstrated that “what goes into the database will much affect the reasonableness of a search relying on it: garbage in, garbage out”—or, as he referred to it, “GIGO.”

Consider some examples. Imagine that 200 of every 1000 Colorado temporary tags (20% of the total are forged, and for this reason do not “return” when the database is queried. Imagine too that 301 legitimate tags similarly fail to return for innocuous reasons. That means 501 or just more than 50% of temporary tags will not return, and it means there’s about a 40% change a non-returning tag is a forgery. That chance is very likely chance enough to satisfy the reasonable suspicion standard.

But change the assumptions about the underlying data and the resulting intuition changes too. Suppose only 5 of every 1000 temporary tags in Colorado (0.5%) are forged and 496 don’t return for innocuous reasons. Once again, just over half the tags will not return, but less than 1% of tags that fail to return in this scenario are illegitimate (5 out of 501) And the suggestion of wrongdoing diminishes even further as the number of innocuous no returns increases. So if legitimate Colorado temporary tags are almost never placed in the database and if forged temporary tags account for an even smaller percentage of the population of temporary tags—both plausible possibilities—getting a “no return” result may tell a reasonable officer next to nothing: virtually every query would yield the same “no return” message whether the tag is legitimate or not. And it is hard to imagine how a “no return” report in those circumstances could form a “particularized” basis to suspect wrongdoing.

Citing Orin Kerr, Judge Gorsuch notes that judges need not become statisticians to evaluate probable cause—when a stop is based only on a database result, a court may unavoidably be faced statistical questions in gauging a database’s reliability. Without the information before him to perform that analysis, Judge Gorsuch finds it impossible to tell whether the database was sufficiently reliable to establish reasonable suspicion. Aware that if he tried to answer those questions at the appellate level, he could suffer his own “garbage in, garbage out” problem, Judge Gorsuch remands the case to the district court, which could more properly act as a fact finder.

With a Justice Gorsuch on the Supreme Court, lower courts, as well as attorneys, would do well to be vigilant about assuming database reliability. On the other side of the coin, they may have an door to challenge various databases—as long as they support their argument with the necessary evidence.

Sarah Tate Chambers is a second year law student at the University of South Carolina. She currently works for the Department of Justice's Publications Unit. She graduated from the University of Minnesota with a B.A. in Religious Studies.